An ongoing quest for equality

Context:

Supreme Court delivered a 4:1 verdict, in Indian Young Lawyers Association v. State of Kerala, throwing open the doors of the Sabarimala temple to women of all ages.

With this, the Supreme Court set aside a 27-year-old Kerala High Court judgment that upheld the prohibition.

The High Court had pointed out that the ‘Naisthik Brahmachari’ nature of the deity was “a vital reason for imposing the restriction on young women”.

However, Supreme Court condemned the prohibition as “hegemonic patriarchy“. Patriarchy cannot trump freedom to practice religion

The Court said that it amounts to discrimination based on a biological factor exclusive to gender. It was violative of the right to equality and dignity of women.

However, critical questions for the present Judgement (Article 25(1), 26 put through questions):

At stake were several thorny questions.

How deep must the judiciary’s inquiry go in deciding whether to intervene in matters of religion?

Should the court disturb ethical choices made by a community of believers?

How must the integrity behind these practices be judged?

Are religious exercises susceptible to conventional constitutional standards of justice and equality?

The scope of Article 26:

The respondents in favour of entry ban justified the ban on entry of women chiefly at two levels.

First, the temple, they argued, enjoyed denominational status under Article 26 of the Constitution, which allowed it to determine the manner in which it managed its religious affairs.

Second, prohibiting women of menstruating age is supported by the temple’s long-honoured custom for the deity’s celibacy concern.

Further ban was supported by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.

The court repudiated the validity of Rule 3(b), which, it said is at the core of discrimination.

Dissent opinion of justice Indu Malhotra: Essential practices doctrine:

Justice Indu Malhotra held that the determination of what constituted an essential practice in a religion should not be decided by judges on the basis of their personal viewpoints.

The issue of what constitutes an essential religious practice is for the religious community to decide.

Essentiality of a religious practice or custom had to be decided within the religion. It was a matter of personal faith. India is a land of diverse faiths.

Constitutional morality in a pluralistic society gave freedom to practice even irrational or illogical customs and usages. She observed that the freedom to practice their beliefs was enshrined in Article 25 of the Constitution.

Harmonisation of fundamental rights with religion included, providing freedom for diverse sects to practise their customs and beliefs.

The Sabarimala temple was not funded out of the Consolidated Fund of India.

Judging the rationality of faith to Values of Liberal Constitution:

The judgment leaves us wondering how far the right to freedom of religion can really extend.

And to what extent a group’s collective liberty can influence an individual’s equal right to freedom of religion.

The court must look beyond the essential practices doctrine and examine claims by applying a principle of “anti-exclusion”.

Where a religious practice causes the exclusion of individuals impairing the dignity or hampers the access to basic goods of individuals, the over-arching values of a liberal Constitution must come to picture.

Conclusion:

Ultimately, therefore, for Justice Chandrachud, the Constitution must be seen as a document that seeks to bring about a transformed society.

When a religious practice goes so far as to deny women equal status in society, when notions of purity and pollution are employed to perpetuate discrimination, the Constitution ought to mandate a shattering of the conventional divides between the private and the public.

Way Forward:

The real test, in Justice Chandrachud’s opinion, is to assess whether an exclusion founded on religious belief, essential or otherwise, encroaches on a person’s basic right to dignity.

The logic behind the ban was that presence of women deviated men from celibacy. This was placing the burden of men’s celibacy on women. It stigmatises women and stereotypes them.

Individual dignity of women could not be at the mercy of a mob. Morality was not ephemeral. It transcends biological and physiological barriers.

Justice D.Y. Chandrachud said that the aspect to treat women as the children of a lesser God was to blink at the Constitution. The prohibition was a form of untouchability.

In Justice Chandrachud’s words that “the Constitution exists not only to disenable entrenched structures of discrimination and prejudice, but to empower those who traditionally have been deprived of an equal citizenship.”